Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698940455267.pdf (South Africa)
Thursday, 8 July 2021] No 93—2021] THIRD SESSION, SIXTH PARLIAMENT PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA _____________________ ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS _____________________ THURSDAY, 8 JULY 2021 _____________________ TABLE OF CONTENTS ANNOUNCEMENTS National Assembly 1.
Membership of Assembly ................................................................................................ 2 Referral to Committees of papers tabled .......................................................................... 2 2.

National Council of Provinces 1.

Referral to Committees of papers tabled .......................................................................... 3 TABLINGS National Assembly and National Council of Provinces 1.
Minister of Finance ........................................................................................................... 5 2.

Minister of Human Settlements, Water and Sanitation – correction ................................ 6 1 National Assembly 1.

Speaker ............................................................................................................................. 6 National Council of Provinces 1.
Chairperson ...................................................................................................................... 8 COMMITTEE REPORTS National Assembly 1.

2.

3.
2.

3.

Employment and Labour .............................................................................................. 10 Employment and Labour ..................................................................................... 11 Employment and Labour ..................................................................................... 28 ANNOUNCEMENTS National Assembly The Speaker 1.
Membership of Assembly (a) The vacancy, which occurred in the National Assembly owing to the death of Ms J M Mofokeng, has been filled with effect from 23 June 2021 by the nomination of Ms A Ramolobeng.

(b) The vacancy, which occurred in the National Assembly owing to the loss of membership of Mr M Nyhontso in terms of section 47(3)(c) of the Constitution, has been filled with effect from 23 June 2021 by the nomination of Mr B Joko.

2.
2.

Referral to Committees of papers tabled (1) The following paper is referred to the Standing Committee on Public Accounts for consideration and report, and to the Portfolio Committee on Cooperative Governance and Traditional Affairs: (a) Third Special Report of the Auditor-General on the Financial Management of Government’s Covid-19 Initiatives [RP203/2021].
(2) The following paper is referred to the Standing Committee on Public Accounts for consideration and the Portfolio Committee on Cooperative Governance and Traditional Affairs: (a) Consolidated General Report of the Auditor-General on the Local Government Audit Outcomes for 2019-20.
2 (3) The following paper is referred to the Standing Committee on Finance: (a) Draft Prudential Standards on Holding Companies of Financial Conglomerates, in terms of the Financial Sector Regulation Act, 2017 (Act No 9 of 2017).

(4) The following papers are referred to the Standing Committee on Finance for consideration and report.
Financial Statements are referred to the Standing Committee on Public Accounts for consideration: (a) Report and Financial Statements of the South African Reserve Bank for 2020-21, including the Report of the Independent Auditors on the Financial Statements for 2020-21.

(b) Annual Financial Statements of the Corporation for Public Deposits for the year ended 31 March 2021.
(c) Report and Financial Statements of the South African Reserve Bank’s Prudential Authority for 2020-21, tabled in terms of section 55(1)(c) of the Financial Sector Regulation Act, 2017 (Act No 9 of 2017).
(5) The following paper is referred to the Portfolio Joint Standing Committee on Defence for consideration and report: (a) 2021 First Quarterly Report of the National Conventional Arms Control Committee (NCACC) for January – March 2021, tabled in terms of section 23(1) (c) of the National Conventional Arms Control Act, 2002 (Act No 41 of 2002).
(6) The following paper is referred to the Portfolio Joint Standing Committee on Defence for consideration and report: (a) Letter from the Acting Minister of Health dated 28 June 2021, to the Speaker of the National Assembly explaining the reasons for the delay in the submission of the Annual Report of the Compensation Fund for Mines and Works for the 2020-21 financial year.

National Council of Provinces The Chairperson 1.


Referral to Committees of papers tabled (1) The following Executive Undertakings are referred to the Select Committee on Petitions and Executive Undertakings for consideration and report: 1.
Minister of Public Works and Infrastructure: On 18 May, during the Policy debate on Budget Vote 13: Public Works and Infrastructure, the Minister made the following undertakings: 3 (a) “We approved funding for the One Stop Border Posts initiative with Zimbabwe, Mozambique, Lesotho, eSwatini and Botswana, and we’ve allocated around R1,5 billion from the Infrastructure Fund.

This project of the One Stop Border Posts will be a public/private partnership programme”.
(b) “The total is R8,3 billion and the funding will be spent to meet the 7 key Priorities of government and including the priorities of the National Development Plan, and that includes: accelerated infrastructure investment for economic growth; transforming our economy and the built environment and enable job creation; proactively ensure spatial transformation and redress using state- owned entities and assets; and provide a dignified experience for our client departments, the civil servants working in government buildings, be it a police officer or nurse and ultimately to every South African that visits a government building”.
(c) “For this financial year, the department will be disbursing allocations to eligible public bodies in the EPWP and for the following sectors: R1,18 billion in this financial year will be going to the infrastructure, environment and culture sector, also the social sectors through the integrated grant incentives for provinces and municipalities, and we estimate that we can create 81 850 EPWP work opportunities”.
(d) “R1 billion in this financial year will go to the Non-state Sector Programme, with an estimated total of just over 52 189 work opportunities that can be created.

Another R414 million in the social sector in this financial year will go to provinces, and we estimate that the provinces can create a total of 16 243 work opportunities”.

4 (e) “Property Management Trading Entity, PMTE, the allocation for the PMTE will be R4,2 billion for this financial year.
Some of the things that PMTE will focus on, on the refurbishing and maintaining government buildings in its portfolio and also to develop 12 small fishing harbours”.

(f) “Also under PMTE, an amount of R945,7 million is allocated for the Department of Public Works and Infrastructure’s specific infrastructure projects and: R256 million will be used for the Land Ports of Entry”.
(g) “R23 million is set aside for the retrofitting of facilities that have not catered for people with disabilities, so we will make more government buildings disable-friendly”.

(h) “R199 million is for the precinct development in our cities and to support efficient integrated cities and government planning will be to group departments together that will provide similar services”.

TABLINGS National Assembly and National Council of Provinces 1.
The Minister of Finance (a) Agreement between the Government of the Republic of South Africa and the Government of the Republic of Angola on Mutual Administrative Assistance in Customs Matters, tabled in terms of section 231(3) of the Constitution, 1996.

(b) Explanatory Memorandum to the Agreement between the Government of the Republic of South Africa and the Government of the Republic of Angola on Mutual Administrative Assistance in Customs Matters.

5 2.
5 2.

The Minister of Human Settlements, Water and Sanitation - correction Please note: The following entry replaces entry No 10(w) in the name of The Minister of Human Settlements, Water and Sanitation, published in ATC (Announcements, Tablings and Committee Reports) dated 15 March 2021.

(a) Annual Performance Plan of the Estate Agency Affairs Board 2021/2022.

National Assembly 1.


The Speaker (a) A petition from residents of Leondale, Germiston, Ekurhuleni, calling on the Assembly to investigate the provision of a police station or satellite police station to combat the high crime rate in their area.

(Ms M Clarke) Referred to the Portfolio Committee on Police for consideration and report.
(b) Reply by the Minister of Basic Education to Budgetary Review and Recommendation Report of the Portfolio Committee on Basic Education on the performance of the Department of Basic Education for the 2019-20 financial year, as adopted by the Assembly on 1 December 2020.

Referred to the Portfolio Committee on Basic Education.
(c) Letter from the Auditor-General dated 06 July 2021, to the Speaker of the National Assembly on the delay in submission of audit reports on the separate and consolidated financial statements of the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA) auditees for the financial year ended 30 June 2020.
Report of the auditor-general on the delay in submission of audit reports on the separate and consolidated financial statements of the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA) auditees for the financial year ended 30 June 2020 1.

I refer to my letter to you dated 18 November 2020 relating to the delay in submission of audit reports on the separate and consolidated financial statements of local government auditees for the financial year ended 30 June 2020.
Delay in submission 6 2.

In my communication, I indicated my anticipation that the audit reports for many MFMA auditees would not be finalised by 31 January 2021 and 28 February 2021 for the reasons outlined.

Furthermore, it was our endeavour to finalise these audit reports by 28 February 2021 and 31 March 2021 respectively.
for separate and consolidated financial statements, Reason for the further delay in finalisation Regrettably, the finalisation of the reports on some of the outstanding audits were further delayed for reasons such as: • • Late or no submission of the annual financial statements as required by section 126 of the MFMA.

The second wave of the covid-19 pandemic and the level 3 lockdown as announced by the president of the Republic of South Africa on 28 December 2020.
• Our response to the President’s request to conduct real-time audits into the management of the covid-19 relief funds, which put additional strain on our available resources.

• Disputes of a technical nature on some of the audits that had to be resolved before finalising the audit reports.

Statutory notification 3.


Section 126(4) of the MFMA requires me to notify Parliament, as I hereby do, of instances where I am unable to complete an audit within three months of receiving the annual financial statements in respect of a particular financial year.

The extended target dates that I communicated to your office in November 2020 were insufficient to complete all of the outstanding audits.
We were able to finalise more than 80% of the MFMA audit reports by the end of June 2021 and are in the process of completing the other audits where we have received annual financial statements.

Please refer to Annexure A for the detailed list of outstanding audit reports.

4.

Section 133(2)(a) of the MFMA further requires that I submit the names of municipalities and municipal entities that failed to submit their annual financial statements for auditing.
At present, the financial statements of three municipalities in the Free State remain outstanding.

These municipalities are 7 Masilonyana Local Municipality, Tokologo Local Municipality and Maluti- A-Phofung Local Municipality.

The failure of these municipalities to submit annual financial statements is the reason why my office could not perform their statutory audit for the 2019- 20 financial year.

Conclusion 5.
Conclusion 5.

The timely completion of our audits and submission of the resultant reports are critical steps in realising the constitutional value of accountability.

We are mindful of the need for these reports to equip legislatures to fulfil their various oversight functions and to share our insight into the management of the public purse with the people fo South Africa.

We therefore remain committed to the adherance of these milestones, even during extraordinarily difficult times.

6.
6.

My office is available to address any questions that your office may have.

Yours sincerely Tsakani Maluleke Auditor-General National Council of Provinces 1.

The Chairperson (a) Response from Minister of Tourism to House Resolution adopted by the National Council of Provinces on 10 March 2021.

Referred to the Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour for consideration.

COMMITTEE REPORTS 8 National Assembly 9 1.


Report of the Portfolio Committee on Employment and Labour on the International Labour Organisation (ILO) Convention No.

190 concerning the Elimination of Violence and Harassment in the World of Work, dated 7 July 2021 The Portfolio Committee on Employment and Labour, having met on 30 June 2021 to consider the request for approval by Parliament of the International Labour Organisation (ILO) Convention No.
190 concerning the Elimination of Violence and Harassment in the World of Work, recommends, in terms of section 231(2) of the Constitution, that the House approves the said Convention.

Report to be considered.

10 2.


REPORT OF THE PORTFOLIO COMMITTEE ON EMPLOYMENT AND LABOUR ON THE PUBLIC HEARINGS HELD ON THE EMPLOYMENT EQUITY AMENDMENT BILL, DATED 7 JULY 2021 The Portfolio Committee on Employment and Labour, having conducted public hearings on 13, 14 and 15 April 2021 on the Employment Equity Amendment Bill, reports as follows.

1.
1.

Introduction The Employment Equity Amendment Bill (the Bill) was referred to the Portfolio Committee on Employment and Labour (the Committee) on 21 July 2020.

The Committee was briefed on the proposed amendments by the Department of Employment and Labour on 28 October 2020.

In accordance with section 59 of the Constitution, the Committee resolved to conduct public hearings as an initiative to test public opinion on the proposed amendments to the Employment Equity Act.
The public hearings were held on the zoom platform on 13, 14 and 15 April 2021.
The following entities made oral submissions before the Committee: 13 April 2021 ENTITY Sakeliga PRESENTER Mr. Piet Le Roux and Mr. Martin van Staden South African Institute of Race Relations Ms. Anthea Jeffrey (SARR) Commission for Gender Equality (CGE) Mr. Dennis Matotoka Congress of South African Trade Unions Mr. Matthew Parks (COSATU) 14 April 2021 ENTITY Solidarity PRESENTER Mr Anton Van der Bijl The South African Medical Technology Ms Tanya Vogt Industry Association (SAMED) Agri Western Cape Mr Louis Wessels 1 11 Banking Association of South Africa Ms Ayanda Baepi, Mr Sibanyoni, Mr Masindi and Mr Lukhele 15 April 2021 ENTITY AgriSA BUSA Telkom PRESENTER Ms Sethusha Lebogang, Mr Christo van der Rheede Mr Kaizer Moyane, Ms Sino Moabalobelo Mr Siyabonga Mahlangu, Dr De Beer South African Forum of Civil Engineering Ms Ingrid Campbell Contractors (SAFCEC) Payroll Author’s Group of SA (PAGSA) Mr Rob Cooper The following section of this report is a summary of oral presentations made by organised formations as well public institutions during the public hearings.
2.

Summary of Oral Submissions The Committee received oral submissions from organised formations as well as from public institutions over a period of three days, namely from 13 to 15 April 2021.

2.1.

Summary of oral submissions made on 13 April 2021 2.1.1.
Sakeliga (Mr. Piet Le Roux and Mr. Martin van Staden) Sakelika expressed objection to the following clauses of the Bill and suggested what they perceive as remedy to the situation: • Clause 4/ Section 15A o The new section 15A empowers the Minister to set numerical targets for any national economic sector.

Sakeliga proposed that guidelines for exercise of this power must be included in the legislation.
o Subsection 2 of the new section empowers the Minister to prescribe criteria that must be taken into account in identifying sectors and sub-sectors for the purpose of determination of numerical targets.

Sakeliga is of the view that the criteria must be prescribed by Parliament, not the Minister.

2 12 o Sakeliga proposed that the entire clause 4 be removed from the Bill.
• Clause 12/ Section 53 o New subsection 6 of section 53 state that the Minister may only issue a certificate of compliance if the Minister is satisfied that some conditions are met.

Sakeliga view satisfaction of the Minister as a subjective criterion.

• Socio-Economic Impact Assessment o Sakeliga pointed out that the 2015 policy of the Department of Policy Monitoring and Evaluation (DPME) requires every legislation that is published to include the socio-economic impact assessment.
The entity requested that SEIA be made available or be conducted if it was not done.

• Constitution o The entity is of the view that the Bill is not compatible with these sections of the Constitution: Section 9 and section 195(1)(i).

Section 195(1)(i) states that public administration must be broadly representative of the South African people.

Subsection 2 identify entities to whom this apply as (a) administration in every sphere of government, (b) organs of state and (c) public enterprise.
Sakeliga pointed out that the private sector is not mentioned.

Sakaliga General Comments Some conceptual problems raised includes that: • The Bill limits employment to racial representativity.

• The Minister can set sector targets not based on the economically active population.

• Since employers are compelled to comply to sector targets set by the Minister, they amount to quotas.
• The Bill introduces a drag factor or red tape in doing business in South Africa at a time when the economy is very vulnerable, as shown by the GDP.

• Success in implementation of the Bill will mean failure for society to flourish.

Success in implementation of the Bill will result in social destabilisation as people will have to seek employment in areas where they are less concentrated in terms of race.
• The Bill strengthens something that the government should be moving away from, which is racial classification.

It is prudent for the state to avoid racial classification.

3 13 2.1.2.

South African Institute of Race Relations (Dr Anthea Jeffrey) The South African Institute of Race Relations (SAIRR) objected to the following clauses and suggested replacement of the entire Employment Equity Act.
• Clause 4/ Section 15A South African Institute of Race Relations (SAIRR) is of the view that the new section gives unrestricted discretion to the Minister, since there are no guiding parameters provided.

Therefore, they believe this section undermines supremacy of the rule of law.

• Clause 12/ Section 53 SAIRR believes that this clause is likely to add to state’s procurement costs.

• Socio-Economic Impact Assessment SAIRR pointed out that the SEIA was not published with the Bill.
They highlighted the importance of SEIA in view of the current economic situation, including GDP shrank by 7%, 1.4 million jobs lost, tax revenues went down and public debt went up.

• Constitution SAIRR pointed out that the Constitutional requirement for the public service to be broadly representative, is not the same as strict demographic representativity.

Further, they pointed out that this section does not apply to the private sector.
The Bill fails the Constitutional Court test in Van Heerden case of 2004, according to SAIRR.

SAIRR General comments • The Bill overlooks key barriers to upward mobility, including low growth, high joblessness, poor schooling high crime rate, family breakdown, etc.

• The Bill assumes demographic representativity is the norm.

• People are not “blank slates”.

• Black population is youthful and therefore lack work experience while high level jobs require more experience.
• Businesses cannot afford loss of competitiveness.

• The Bill will stall economic recovery, prompt further flight of scarce skills and capital, leave more people unemployed, add to poverty, etc.

4 14 • Employment Equity helps a relatively small elite of the previously disadvantaged persons.

SAIRR recommended that EEA be replaced with Economic Empowerment for the Disadvantaged (EED).
This, according to SAIRR, will include provision of tax funded vouchers for schooling, health care and housing to low income households to empower them directly.

2.1.3.

Commission for Gender Equality (Mr. Dennis Matotoka) Commission for Gender Equality (CGE) made the following comments: CGE General Comments • Commission for Gender Equality (CGE) supported the Bill.

• However, they pointed that the Bill must not only focus on race inequality.

• They emphasised women participation in workplaces.
• They want gender barriers to be addressed including provision of breastfeeding facilities and flexitime.

• CGE identified gaps in implementation of EEA.

• CGE noted that upward mobility continues to be a challenge for the previously disadvantaged.

• We need to have measures in place to ensure that the private sector complies with the EEA, according to the CGE.
• CGE supports clause 6, which amends section 20 to ensure that the numeral goals of the employer comply with sectoral targets set by the Minister in terms of the proposed new section 15A.

• CGE believes that the exemption of small employers from meeting EE targets is a reversal of the gains achieved.

• CGE support clause 12, which amends section 53 that deals with issuing of compliance certificates by the Minister for the purpose of State contracts.

2.1.4.
2.1.4.

COSATU (Matthew Parks) COSATU commented as follows: 5 15 • COSATU supported the Employment Equity Amendment Bill.

They were of the view that it is in line with the Constitution.

• COSATU is familiar with the Bill since it participated in drafting of the Bill at NEDLAC and therefore did not have a problem with any of the clauses.

• It is a fallacy that the market will address the legacy of apartheid that is still haunting us.
• The Bill excludes employers that employ less than 50 employees from compliance to EE targets.

• The Bill provides flexibility for the Minister to set provincial, regional and sectoral targets.

This, according to COSATU, is essential since not all sectors are the same e.g.

financial services and mining sectors are behind in terms of EE compliance.

Therefore, we don’t need a “one size fit all” approach.
• COSATU supported clause 9, which seeks to amend section 36 in order to empower labour inspectors to secure written undertakings from designated employers on preparation of EE plans.

• COSATU supported clause 12, which seeks to amend section 53 by adding a new subsection 6 in order to clarify that the Minister may only issue a compliance certificate to an employer that comply with labour laws and good labour practice.
• COSATU urged the Department to work with National Treasury to ensure that section 53 is operationalised.

2.2.

Summary of oral submissions made on 14 April 2021 2.2.1.

Solidarity Solidarity emphasised a consensus seeking process in their comments.

The submitted as follows: • The South African Human Rights Commission’s (SAHRC) equality report dated 12 July 2018 recommended that Employment Equity Act must be amended to target more nuanced groups on the basis of socio-economic needs rather than race.
Solidarity submitted that the Employment Equity Amendment Bill (EEAB) is in direct contrast to this recommendation of the SAHRC.

• Solidarity asserted that fairness should be achieved through a consensus seeking process between employers and employees.

Further, imposition of sector targets by the Minister or 6 16 the Department must be rejected out of hand because it does not consider the context of individual companies.

The organisation is of the view that imposition of targets amount quotas.
• Solidarity concluded that the proposed EEA amendments are not only unconstitutional and unlawful, but are in direct opposition to the international convention on elimination of racial discrimination and the SAHRC report that flows from it.

2.2.2.

South African Medical Technology Industry Association (SAMED) SAMED supported the following aspects of the Bill: • Section 1: Definition “people with disabilities” amended to include “intellectual or sensory” impairment.
The disability therefore is no longer required to be the only barrier, nor must it be proven that it hampered access, the fact that it “may” would be adequate.

• Section 8: Various elements that are required to be adhered to before psychological assessment is done are now connected by “and’, meaning that all four criteria must be in place before these assessments can be lawfully done on employees.
• Section 36: Allows an inspector to instruct an employer to prepare an employment equity plan and the employer must issue a written undertaking to that effect.

• On designated employers, the threshold per sector is repealed and only employers with more than 50 employees have to comply with affirmative action provisions of the EEA.
SAMED made the following proposals: • Consider more refined Standard Industrial Classification (SIC) class levels to ensure similar employers in the medical technology sector face similar regulatory and other requirements.

• More than 30 days to engage on the targets required.

Methodology on how targets are to be set has to be published.
Minister to consult with relevant sector, recognising SIC groups sectors together, whereas specific and separate consultation with health sector players such as SAMED, would be required.

Arbitration to be considered where agreement cannot be reached.

• Practicalities of timing of setting targets to be addressed in the law.

The level of compliance has to be set out in the Act.
7 17 • The process of compliance certificates, challenges thereto, the issuing authority and the time lines to be set out in the Act 2.2.3.

Agri Western Cape Agri Western Cape expressed support for transformation within the agricultural sector.

However, they raised the following points: • Clause 4 inserts new section 15A, which seeks to empower the Minister to set numerical targets for any national economic sector.
Agri Western Cape is concerned about the possible consequences of this new section since the demographics of the Western Cape are different from those of other provinces.

They also pointed out that no guidelines were provided for setting of sector targets, which leaves it entirely to the discretion of the Minister.

Agri Western Cape enquired about circumstances under which another person may act on behalf of the labour inspector to serve a compliance order.

2.2.4.
2.2.4.

Banking Association of South Africa (BASA) BASA supported the tenor of the Bill, which is aimed at addressing the slow pace of transformation within many South African workplaces.

However, BASA raised the following concerns: • Clause 1, section 1(a) deletion in the definition of “designated employer” BASA was of the view that the deletion has the unintended consequence of exempting small businesses from the application of affirmative action regardless of their annual turnover.
This, according to BASA, has a potential of creating a loophole for employers who employ 50 or less employees to restructure in a manner that excludes them from the application of affirmative action regardless of their annual turnover.

• Clause 4/ Section 15A Section 15A (3) gives all powers to the Minister to set targets in consultation with the National Minimum Wage Commission and not the relevant sector.
This, according to BASA, is problematic in that it fundamentally alters what was agreed at NEDLAC by business and social 8 18 partners.

BASA proposes that the Minister should revert to the initial agreement that was negotiated at NEDLAC i.e.

to consult with relevant sector bodies when setting sector targets.
Subsection 4 states that: A notice issued in terms of subsection (3) may set different numerical targets for different occupational levels, sub-sectors or regions within a sector on the basis of any other relevant factor.

BASA was of the view that sector targets should be set nationally and not differentiated by region.

A business with a national footprint will need to comply with different targets by region.
This will place considerable burden in terms of restructuring, planning and managing the compliance requirements for those businesses that operate nationally.

Further, one of the fundamental principles which is part of EEA i.e.

section 15(3) is that quotas should be excluded when affirmative action measures are designed.

Imposed regional targets simply put, according to BASA, are quotas.

These “quotas” will be imposed on a particular industry and companies will be expected to achieve the “targets”.
Companies have different challenges and are moving from different basis irrespective of being in a similar industry/sector.

The approach of setting targets without consulting the relevant sector first does not take the individual circumstances into consideration and this will not only be unfair to others and potentially amount to creation of unlevelled playing fields, but also against the principle of equity.
BASA was of the view that the process to set targets should be consultative, fair and transparent.

• Conflating of CCMA and Employment Equity processes Section 53 of the principal Act was proposed to be amended by the addition of the following subsection: (6) The Minister may only issue a certificate in terms of subsection (2) if the Minister is satisfied that … BASA felt that employee disputes are unavoidable, and the outcomes of legal proceedings are often unpredictable.
As such to place reliance of outcomes of CCMA or Labour Court decisions to determine whether an employer can be issued with a compliance certificate goes against the spirit of fairness.

9 19 The CCMA and Court processes, according to BASA should not be combined with the legislative process otherwise we run the risk of employers being afraid to discipline employees for fear of not being able to obtain a compliance certificate as Court proceedings can be unpredictable.
The CCMA and the Labour Court are there to protect employees and employers and settle disputes between them and therefore the outcome of their processes should not be used against employers.

BASA proposes that this requirement be removed from EE compliance.

2.3.

Summary of oral submissions made on 15 April 2021 AgriSA commented on the Employment Equity Amendment Bill as follows: 2.3.1.
AgriSA • AgriSA believes that it is imperative for the sectoral targets to be set in partnership with the relevant sectors.

The Minister needs to be sensitised to the realities within the agricultural sector and take into consideration what is achievable and at what pace.

For the Minister to have unlimited discretion in setting of targets will be highly problematic in that it will be challengeable on various legal grounds.
• In order for the EEA to have an impact on the current disparities in the agricultural sector, the Amendment Bill needs to state that consensus between the Minister and the targeted industries must be reached in terms of the employment equity strategy it seeks to deploy.

• Therefore, the Amendment Bill must specifically express that the Minister has a legislative obligation to consult and plan with the sector when setting any sectoral targets and the criteria applicable.
• Consequently, the Amendment Bill must set out guidelines to resolve any impasse that may result from a situation where agreement cannot be reached between the Minister and the relevant sector.

• The importance of meaningful consultation is to advise the Minister on the level of complexity and differentiation between one agricultural subsector to another e.g.

certain subsectors are experiencing economic boom, whilst others are struggling.
10 20 Therefore, the imposition of a “one size fit all” approach in terms of target setting for the entire sector will unlikely achieve positive results.

The Minister need to consider the de facto state and realities faced by farmers in the agricultural sector resulting in farmers being faced with targets that are impossible to attain.
Therefore, section 15A must read as follows: • • “The Minister may, after consulting the relevant sectors and with the advice of the Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette, set numerical targets for any national economic sector identified in terms of subsection (1)” AgriSA identified effective sourcing of high-quality students for post-school studies as one of the challenges faced by the agricultural sector, which puts a strain on the supply of skills to the sector.
It stated that remains a challenge for the sector to fill top critical positions with experienced and qualified people.

AgriSA identified the following as alternative strategies to drive transformation: • SARS Employment Tax Incentive Scheme, a scheme aimed at encouraging employers to hire young work seekers.

• AgriSeta Learnership Programme, a vocational learnership and training programme.
• National Skills Fund, a critical national skills development resource that contributes to the national skills development priorities, such as training initiatives, bursaries and scholarships, learnerships and skills programmes, and workplace-based learning.
2.3.2. Business Unity South Africa (BUSA) As a background to their presentation BUSA stated: “It is important to note that the version of the EE Amendment Bill tabled at the National Assembly is different to the version of the EE Amendment Bill which was engaged on 11 21 at NEDLAC and subsequently published in the Gazette in September 2018 for public comment.” • According to BUSA, the following version of section 15A wording was agreed to by ALL social partners: “The Minister may, after consulting the relevant sectors and with the advice of the Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workplace, by notice in the Gazette set numerical targets for any national economic sector identified in terms of subsection (1).” • BUSA is of the view that the legislation should reflect that the sector target should be set with the respective industry in a joint consensus seeking approach.
The approach of “joint consensus seeking” is entrenched in various processes in the Labour Relations Act, and employers and workers are familiar with it.

They believe that this same approach should be adopted in setting sector targets if these targets are to be effective.

• BUSA further believes that the Act needs to make provision for instances where agreement cannot be reached between the Minister and the relevant sector.
• BUSA proposed that the impact of the amendments on foreign organisations must also be factored into the consultations.

According to them, the proposed amendments present considerable uncertainty, particularly as some of these organisations may lag in representation of designated persons for justifiable and objective reasons.
• BUSA believes that the fact that labour inspectors have the broad powers to determine compliance under section 42, which includes reference to the factors stated in s15, is incomprehensible given that the result thereof could be the very closure of an organisation and contribute to a further decline in economic growth and unemployment levels increasing.

The potential for corruption and abuse of power is also a serious threat in this context.
• The position of BUSA is that section 42(1) (Aa) (dealing with assessment of compliance) should be amended to read: “whether or not the employer has taken reasonable steps to achieve the applicable sectoral target”.
12 22 • BUSA is of the view that giving a Minister or one of his or her officials the power to set targets by decree outside of the legislation promulgated specifically to give effect to section 217(3) of the Constitution without setting a similar legislative framework within which this is to be done, will, in those circumstances, conflict with both sections 217(1) and 217(3), and not be rescued by the proviso in section 217(2), which of itself needs to comply with section 217(3).
• Further, BUSA believes that if the numerical targets which are set constitute an absolute barrier, which the holding of a certificate and with that the opportunity to bid for Government work will do, that would fall foul of section 15(3) of the EEA.

• The consequences of not meeting the sector targets would eliminate organisations from transacting with the State and destroy their revenue lines, resulting in liquidation and job losses.
The same consequence would apply to any company exercising its rights to appeal the findings of the inspector, should they choose to do so, as they will have no certificate during such appeal period either.

• If the EEA is amended, it will mean that an employer will be bound to use the sectoral targets fixed by the Minister in its employment equity plan, and consultation with employees would be rendered meaningless.

The employer’s hands will be tied, regardless of the input from its employees.
BUSA does not believe that this disempowering consequences should be allowed to stand, given its potentially disruptive effect on workplace harmony and labour relations.

• BUSA submitted that to accept the current Bill as it stands will not only undermine the workings of NEDLAC by unravelling agreements reached by social partners, but will also have unintended consequences on businesses and their ability to grow and to create or sustain employment.

2.3.3.
2.3.3.

Telkom Telkom submitted as follows: • The Bill gives powers to the Minister of Employment and Labour to set numerical targets for representation of black people, women and disabled employees within the different levels of employment in the workplace.

13 23 • In terms of the Bill, the Minister is only required to consult with the National Minimum Wage Commission on the proposed sectors and targets before publishing such proposals by means of a notice for comment.
• Telkom stated that the Bill of 2018 formally provided for consultation with the relevant sectors in section 15(2) regarding ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce before publication of the notice in the Gazette set numerical targets for any sector.

This provision for consultation with sector stakeholders is absent in the current version of the Bill.
• Telkom view this as a unilateral imposition of targets by the Minister, which may not be practically implementable by electronic communications operators and industry stakeholders and they assert that this may have the unintended effect of threatening existing jobs in a difficult economic climate.

• Telkom is of the view that in the tough economic climate it is difficult to make appointments that may be necessitated to meet new numerical targets, as many employers are trying to protect existing jobs.
• According to Telkom, requiring designated employer to meet the targets set by the Minister and assessment on the basis of these criteria, particularly before it may do work for Government, amounts to quotas which may be unenforceable.

• Telkom suggests that there be clear guidelines as to what amounts to compliance with the numerical sectoral targets.

• Telkom wanted clarity on what amounts to a reasonable justification for non- compliance.
• Telkom suggested that the Bill provides an employer with an opportunity to apply for a formal exemption from its provisions.

• Telkom cautioned against the proposed amendment that a designated employer must consult only with a representative trade union regarding matters referred to in section 17 of the EEA because the trade unions do not represent all Telkom employees.
Telkom made the following recommendations: 14 24 • That a study be undertaken in order to determine which targets would be practical and plausible for the electronic communications sector prior to publication of the notice setting out numerical targets.

• The study must take into account all relevant factors, including the challenging and unprecedented macro-economic environment.
• The study should provide alternatives that can be considered including targets based on the limited hiring opportunities rather than head count targets and accelerated training of persons in affected groupings aligned to the scarce and critical digital and coding skills that are increasingly in demand.

2.3.4.
2.3.4.

South African Forum of Civil Engineering Contractors (SAFCEC) SAFCEC commented on target setting as follows: The process of setting targets must be defined and regulated per sector to ensure that: • They do not amount to quotas.

• They are realistic, achievable and fair.

• The process is transparent, rational and includes joint consensus seeking.

• It includes the process of gathering information, public participation, appeals, etc.
• The matter of regional targets within the industry is handled with due consideration.

SAFCEC commented on compliance as follows: • Compliance certificates potentially barring companies to bid for State work is the incorrect and counter-productive approach.

• The current Act has significant powers assigned to enforce EE compliance.

• Compliance certification is seen as another measure to enforce compliance particularly in the construction industry.
All industries should be treated the same as far as impact is concerned.

• The combined effect of both fines and denying certificates are unreasonable.

• The implementation and actions of inspectorate to enforce compliance must be defined and agreed through either the Act or Regulations.

• There is significant concern related to the power assigned to inspectors.
15 25 SAFCEC raised the following concerns on the impact of the Bill on the construction industry: • Strong growth in the industry required to enter employment cycle.

• Job creation through infrastructure investment must take priority.

• Poorly conceived and implemented EE legislation can severely damage the industry and thus denying the country a national asset.

• Ongoing legal processes absorb resources and is counter-productive.
• Bribery and corruption resulting out of inspectorate having “life or death” power over companies.

• Ease of doing business decreases.

• Employment costs escalate.

• Employers avoid employment and employ minimum number of employees.

• Further skills flight of people the industry need as the mentors and drivers of change.

2.3.5.
2.3.5.

Payroll Author’s Group of SA (PAGSA) PAGSA commented on the Bill as follows: • PAGSA fully supports the proposed change to exclude all employers with less than 50 employees by removing the turnover thresholds from the definition of a “designated employer”.

This, according to PAGSA, will significantly reduce the administration burden for smaller employers, balanced by allowing compliant smaller employers that are not designated to participate in government tenders.
• With regard to sectoral numerical targets, PAGSA’s impression is that the addition of these targets into the mix of national and regional demographics is complex.

It will add to the employer’s administration burden and could possibly result in reduced compliance levels due to misunderstandings and honest mistakes.

• Added to the complexity is that a corporate employer might have branches in different sectors.
• PAGSA trust that the Employment Equity Directorate will create a comprehensive Guide to assist employers with the new requirements.

If the Guide is not planned, PAGSA would like to request that this be considered as a matter of importance.

16 26 3.

General Observations The Employment Equity Amendment Bill was received favourably by the majority of those who made oral presentations during the public hearings.
However, the following clause was a source of concern from most presenters: • Clause 4, which inserted the new section 15A Section 15A deals with the determination of sectoral numerical targets.
Subsection 15 A (3) reads as follows: “The Minister may, after consulting the National Minimum Wage Commission, for the purpose of ensuring the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce, by notice in the Gazette set numerical targets for any national economic sector identified in terms of subsection (1)”.
Some presenters stated that the Bill that was discussed at NEDLAC and agreed to by social partners had a provision for consultation with sector stakeholders, which is absent from the Bill that is before Parliament.

The feeling of most parties who objected to this clause was that consultation with only the National Minimum Wage Commission was insufficient.
They want the clause to be amended so as to revert back to the formulation that was agreed to at NEDLAC, which is to make provision for the Minister to consult sector stakeholders.

Having considered the oral presentations, the Committee agreed that the inputs would definitely assist the Committee when deliberating on the proposed amendments to the Employment Equity Act.

17 27 3.
17 27 3.

REPORT OF THE PORTFOLIO COMMITTEE ON EMPLOYMENT AND LABOUR ON THE PUBLIC HEARINGS HELD ON THE COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES AMENDMENT BILL, DATED 7 JULY 2021 The Portfolio Committee on Employment and Labour having conducted public hearings from 20, 21, 22 and 28 April 2021 on the Compensation for Occupational Injuries and Diseases Amendment Bill, reports as follows.

1.
1.

Introduction The Compensation for Occupational Injuries and Diseases Amendment Bill (the Bill) was referred to the Portfolio Committee on Employment and Labour (the Committee) on 10 September 2020.

The Committee was briefed on the proposed amendments by the Department of Employment and Labour on 4 November 2020.
The Department of Employment and Labour informed the Committee during the briefing that in 2014 the Compensation Fund embarked on a process to amend the Compensation for Occupational Injuries and Diseases Act (COIDA) (No.

130 of 1993).

The Committee was informed that this was as a result of, among other pertinent legislative issues, the Minister’s provincial Izimbizo with domestic workers.
Furthermore, in 2019 the High Court of South Africa declared section 1 (xix)(v) of COIDA to be unconstitutional and invalid to the extent that it excluded domestic workers employed in private households from the definition of “employee”.

The Court directed that this subsection be removed from section 1 of COIDA.

In accordance with section 59 of the Constitution, the Committee resolved to conduct public hearings as an initiative to test public opinion on the proposed amendments to COIDA.
The public hearings were held on the zoom platform on 20, 21, 22 and 28 April 2021.
The following entities made oral submissions before the Committee: 20 April 2021 ENTITY PRESENTER National Employers’ Association of South Mr Gerhard Papenfus Africa (NEASA) 1 28 COIDLink Mr Gideon Nkadimeng and Ms Dewald Teicher Minerals Council of South Africa Ms Nikisi Lesufi and Dr Thuthula Balfour Women’s Legal Centre Ms Chrisentia Blouws & Ms Qiqa Nkomo 21 April 2021 ENTITY PRESENTER Quad Para South Africa (QASA) Mr Greg Daniels South Africa Medical Association (SAMA) Dr Angelique Coetzee and Dr Mvuyisi Mzukwa Association for Dietetics South Africa Ms Alta Kloppers, Mr Alpha Rasekhala and (ASA) Ms Kgadi Moabelo South African Institute of Chartered Ms Juanita Steenkamp Accountants (SAICA) Nala Business Chamber 22 April 2021 ENTITY Mr Ntozelizwe Benjamin Mnqenebe PRESENTER Occupational Therapy Association of South Mr Elvin Williams, Prof Pat de Witt, Ms Africa (OTASA) CompSol Natalie Powell and Mr Leandri Richter Mr Fritz Luttich, Mr Craig Tudhope and Ms Mirieke Vermaak Socio economic Rights Institute (SERI) Ms Kelebogile Khunou, Mr Thulani Nkosi COSATU Solidarity 28 April 2021 ENTITY Mr Metthew Parks Ms Hanlie Van Vuuren PRESENTER Relay Emergency Medical Services Mr Richard Moodie Hospital Association of South Africa Ms Amrita Raniga, Mr Gavin Harrison and (HASA) Dr Dumisani Bomella Richard Spoor Incorporated Mr Richard Spoor and Mr George Kahn Workers Compensation Assistance (WCA) Mr Brian Pivo and Ravishni Mahadeo Injured Workers Action Group (IWAG) Mr Tim Hughes 2 29 The following section of this report is a summary of oral presentations made by organised formations as well as public institutions during the public hearings.
2.

Summary of Oral Submissions 2.1.

Summary of oral submissions made on 20 April 2021 Below is the summary of oral submissions made on 20 April 2021 in the order in which they were presented.

2.1.1.

National Employers’ Association of South Africa (NEASA) The National Employers’ Association (NEASA) presented as follows: • The Compensation Fund is not fulfilling both its constitutional as well as its legislative mandate.
• The Fund has been dysfunctional for some time as evidenced by negative audit opinions for the past five years.

• The information and technology systems, lack of skills, fraud and corruption are some of the challenges facing the Fund.

• NEASA was of the opinion that nothing has been done about these challenges faced by the Compensation Fund.

• Currently medical service providers choose to cede their claims to the Fund to third parties administrators.
This is to ensure that injured workers are treated timeously.

Changing this arrangement, as it is proposed by the amendments, will result in adverse effects such as: o o o inability of workers to return to work; increase in litigations; and injured workers waiting long for claims to be approved before receiving treatment.

• NEASA is opposed to clause 43(4), which seek to amend section 73 of the principal Act which will render ceding agreements void.
• NEASA pointed out that involvement of third parties in claims administration is not unique to the Compensation Fund, it is also found in the Road Accident Fund and Medical Aid schemes.

3 30 • The memorandum, which accompanied the Bill did not explain the rationale behind the amendment of section 73, according to NEASA.

This leaves the motive behind open to speculation.

• According to NEASA the proposed amendment to section 73 of the principal Act is nonsensical.
The context and purpose of this amendment is not provided, thus making it difficult to provide inputs.

• NEASA asked the Committee to consider the irrationality of clause 43 and remove it from the amendment Bill as it is unclear whom this amendment will benefit.

The presenter stated that it is incomprehensible for the Fund that is known for dysfunctionality to propose such an amendment.
• In response to what should be done to improve the situation, the presenter said the solution is for the CF to function effectively.

According to the presenter third party involvement is necessitated by the failures of the CF.

If the third parties are removed, the whole system will collapse, according to NEASA.

The service providers will not be paid and they will turn away injury on duty patients.

Injury on duty patients will have to be treated in already overcrowded public hospitals.
• This amendment will be legally challenged by third party administrators because it would be taking away a source of income from them.

It will also be challenged by medical services providers because it helps them to focus on treating patients rather than doing administrative work.

2.1.2.

COIDLink COIDLink’s presentation focused on the role played by third parties or pre-funders in the claims administration process.

COIDLink presented as follows: • Prefunding does not add costs to injured workers.
• Pre-funders deal only with their clients who are medical services providers.

• Claims administrators provide prefunding to the medical services providers and the service providers cede their claims to the administrator.

• Medical service providers do not suffer loss of cash flow while waiting for the settlement of claims.

4 31 • The Fund has changed its IT systems three times over the past 10 years and this has led to disruptions resulting to loss of money.
COIDLink cautioned that if clause 43(4) is implemented as it currently is, it will result in the following: • Negative impact on workers, job creation and health care system.

• The public health care system is already over-crowded and will not cope with the addition of injury on duty patients.

• The livelihoods of claims administrators will be destroyed.

• It will have a direct negative impact on their supply chain companies e.g.

Human Resource and IT companies.


COIDLink has 60 suppliers that benefit from their operations.

• Medical service providers will be reluctant to treat injury on duty patients.

• This amendment will create a barrier to entry and only well-resourced practitioners will survive.

• Clause 43 will result in claims administrators being deprived of their assets.

• It will result in reduced economic activity and job losses.
COIDLink made the following proposal: • A detailed study of the claims administration industry should be conducted and industry stakeholders to be involved.

• A system of accreditation and licensing of pre-funders should be explored.

In response to an allegation of manipulation of the claims process by administrators, COIDLink CEO pointed out that they have never been taken to court by the CF for fraudulent claims.

2.1.3.
2.1.3.

Minerals Council of South Africa (MCSA) The Minerals Council of South Africa (MCSA) made a clause by clause oral submission on the proposed amendments to the COID Act.

MCSA commented as follows: • Clause 1, amending section 1 of COIDA 5 32 The word “disease” is not defined.

It will therefore include any disease arising out of or in the course of an employee’s employment, for example, a flu or a cold are included under the word “disease” as defined.
In order to remove the unacceptable consequences of the confusion caused by the word “disease”, they suggested that the word “disease” in the definition of “accident”, be replaced with the words “occupational disease”.
• Clause 1, amending Section 1 of the principal Act MCSA proposed that the definition of “employee” in COIDA be amplified by adding paragraph (e) to the definition, which reads as follows: “(e) an employee who works for the first time at an Occupational Diseases in Mines and Works Act (ODMWA) mine or works on or after the commencement date of this Amendment Act and who suffers from an occupational disease”.
• Clause 8, amending section 16 of the principal Act MCSA proposed that the words “life enhancement assistance” in clause 8 that seeks to amend section 16 of the Act be defined.

Such a definition should also contain the safeguard that such assistance must be approved by the Commissioner.

• Clause 12, amending section 22(5) The words in clause 12 amending section 22(5) of the principal Act “in furtherance of the business of the employer” should be replaced with the words “arranged by the employer”.
• Clause 16, amending section 30(1) Provision must be made for the continuation of the rights and obligations of a mutual association that has an existing license.

• Clause 19, amending section 39 of COIDA MCSA proposed that the penalty of 10% be limited to the earnings of the employee(s) involved in the accident and that penalty be the maximum which may be imposed.
MCSA was of the view that if the new proposed provision remained unqualified, it would have draconian consequences since it did not give the Commissioner any discretion to impose a lesser penalty.

• Clause 33, amending section 56 of the principal Act MCSA was of the view that the existing provision must not be amended as no engineer has been or will be appointed under the MPRDA 2002, as no regulations exist.
6 33 • Clause 43, amending section 73 of the Act MCSA’s view was that there is no basis for introducing the proposed amendment.

Furthermore, they felt the prohibition against the “relinquishment” of such a claim is nonsensical and is probably unconstitutional.
Current delays and bureaucracy for health care providers makes business sense for them to cede claims to entities that specialises in this activity • Clause 47, section 78 of COIDA MCSA proposed that a new paragraph (d) be added, which provides as follows: (d) the Commissioner may at the election of the employer reimburse a medical aid fund through which medical aid was provided to employees, such cost out of the Compensation Fund as the Commissioner may deem equitable.” • Clause 59, section 93D of COIDA MCSA recommended that the person being questioned must have the right against self- incrimination.
Furthermore, a provision similar to section 91 of the BCEA should be inserted which provides as follows: “No answer by any person to a question by an inspector conducting an investigation, questioning or inspection in terms of this Act may be used against that person in criminal proceedings, except in proceedings in respect of a charge of perjury or making a false statement”.

2.1.4.
2.1.4.

Women’s Legal Centre (WLC) The presentation of the Women’s Legal Centre (WLC) focused on clause one, which proposed to amend section 1 of the principal Act so as to include domestic workers in the definition of the employee.
WLC cited the Mahlangu case where the Court declared section 1 (xix)(v) of Compensation for Occupational Injuries and Diseases Act (COIDA) 130 of 1993 to be unconstitutional and invalid to the extent that it excluded domestic workers employed in private households from 7 34 the definition of “employee”.

The Court directed that this subsection be severed from section 1 of COIDA.
Ms Nkomo presented as follows: • Domestic work sector is composed of 80 per cent women who work under precarious working conditions.

• WLC welcomed the amendment of section 1 of the principal Act to include domestic worker in the definition of an employee.

• Ms Nkomo emphasised that the Mahlangu Court order was to be retrospective in implementation.

However, she pointed out that retrospective implementation was not reflected in the Bill.
• She recommended that practical steps be taken to make sure that domestic workers are aware of the Mahlangu case and its implications to their rights.

• WLC welcomed the proposed amendment of section 1 of the principal Act so as to include a life partner in the definition of “dependant of an employee.” • The definition of the dependant of an employee was also to be amended to include a child below the age of 25 if the child is still receiving tertiary education.
WCL was of the view that there is no justification for this age limit since social security benefit is a right and not a privilege.

• WLC welcomed the proposed amendment of the definition of an “occupational disease” to include post-traumatic stress disorder.

• WCL welcomed clause 12, which proposed amendment of section 22(5) to extend protection to employees who got injured while transported to work.
WCL made the following recommendations: • The Department of Employment and Labour (DEL) to provide a rationale for the exclusion of a child who is above the age of 25 and not receiving tertiary education from the definition of the dependant of an employee.

• DEL must make sure that those who are to be impacted the most by legislation, domestic workers in this case, are aware of the proposed amendments.
• The Portfolio Committee on Employment and Labour (the Committee) must consider the capacity of the DEL to bring the amendments to life.

• The Committee must ensure that the proposed amendments are implemented retrospectively.

8 35 • DEL must adopt a proactive approach in raising awareness of the Mahlangu case among domestic workers.

• DEL must be encouraged to travel to rural areas to create safe spaces for women to report injuries on duty.

2.2.
2.2.

Summary of oral submissions made on 21th April 2021 Below is the summary of oral submissions made on 21 April 2021 in the order in which they were presented.

2.2.1.

Quad Para South Africa (QASA) QASA made oral submission as follows: • That provisions of COIDA must be interpreted generously in favour of employees.
• That an open list of persons who may be consulted that includes service providers and organisations for disabled persons must be provided instead of just the Health Professions Council of South Africa (HPCSA) and registered Medical Associations.

• Generic description of devices must be used to avoid restriction in procurement.
• Amended section 73(3) makes provision for the medical practitioner to apply for reopening of the claim and payment of further medical costs after the claim has been finalised or the period has lapsed.

QASA pointed out that hospitals are not prepared to wait for claims to be reopened and that state hospitals do not always have the specialist care or resources available resulting in worsening of the initial condition, e.g.

pressure sores and even death.


Therefore, QASA proposed that the claims of permanently disabled beneficiaries remain open so that they are able to access emergency care and hospitalisation at suitable facilities.

• Clause 24 proposed amendment of section 44 to extend the date of reporting an accident from 12 months to three years.

Previously accidents were reported to the commissioner, employer or mutual association concerned.

The amendment proposed to restrict reporting to the Commissioner only.
QASA proposed that the accidents be reported to either employer or Commissioner and the Commissioner be provided with a discretion to process claims after the 3-year period on good course shown.

9 36 • QASA proposed that the monthly pensions that are below the hourly rates of a sector as provided in the National Minimum Wage Act (NMWA) be adjusted upwards from the date that the NMWA came into force.
• Further, QASA proposed that the allowance paid to constant attendants be revised and brought in line with the requirement of the permanently disabled beneficiary (who may require 24-hour attendance) and of the NMWA.

2.2.2.

South African Medical Association (SAMA) SAMA is a professional association with voluntary membership of about 12 000 registered medical doctors practising in the public and private sector.
SAMA made their oral submission as follows: • Clause 43, amending section 73 of the principal Act will have a catastrophic impact on injured workers and the doctors, surgeons, hospitals, physiotherapists and other health professionals who provide their treatment.

• SAMA did not support the amendment of section 73 by clause 43 of the amendment Bill in the form that it has been proposed.

• SAMA requested that subsection 4 of the proposed amendment to section 73 be removed from the amendment Bill.
• The reason for the request was that the amendment means that medical practitioners who treat employees who qualify for compensation under COIDA can no longer use their medical claims as surety for payment in any manner, and will be compelled to attend to the administration of the claims themselves, without the assistance of third- party administrators in a highly dysfunctional environment.
• SAMA is opposed to this amendment on the grounds that it will place an immense administrative, financial and legal pressure on the healthcare sector and disadvantage injured workers, and their right to quality medical care.

• SAMA was of the view that both the Fund and its IT system are dysfunctional.

They stated that the current IT system is as dysfunctional as the previous one.
• According to SAMA, the process of administration with the Compensation Fund is riddled with delays and has proven ineffective, which generally leads to medical practitioners only receiving compensation for their services after two years of the claim 10 37 being submitted (if at all).

In the 80’s and 90’s doctors submitted claims directly.

Problems started end of 90’s and in 2000’s doctors started to make use of 3rd party administrators.
• SAMA also submitted that clause 43 is unconstitutional and irrational.

Further, SAMA submitted that this amendment is an infringement of section 22 of the Constitution of the Republic of South Africa, which stipulates that every citizen has the right to choose their trade, occupation or profession freely.

• SAMA was of the view that public hospitals are, lamentably, overburdened, resource constrained, often poorly managed and under-staffed.
Further, most of the affected employees will be relegated to these facilities, where sub-par quality of care is unfortunately not uncommon.

2.2.3.

Association for Dietetics South Africa (ADSA) The main focus of ADSA presentation was to motivate for the listing of dieticians as service providers to members of the Compensation Fund in the Government Gazette and highlight the essential role of the dietician as a member of the multidisciplinary team treating patients.
The presenter stated that prior to the implementation of UMehluko programme on 4 August 2014, dieticians were compensated in terms of section 73 of COIDA for services rendered to critically injured patients admitted to ICU.

UMehluko as well as various other software programmes implemented thereafter did not make provision for the compensation of service providers not listed in the Government Gazette.
Despite non-payment, dietitians are currently, for ethical reasons, still rendering these essential services to members of the CF without reimbursement.

DEL advised ADSA regarding the listing of dieticians in the Government Gazette.

Since 2015, ADSA attempted to motivate for the listing of dieticians in the Government Gazette.

Despite annual attempts, ADSA have been unsuccessful.
Dietitians are reimbursed for IOD claims according to (i) private funders; (ii) public sector; and (iii) COIDA for claims administered by Rand Mutual Assurance (RMA) and Federated Employers Mutual Assurance Company (FEMA).

However, they are not reimbursed for IOD via Workmen’s Compensation Fund.
11 38 ADSA is of the opinion that according to the Bill of Rights, Section 27 of the Constitution and the HPCSA’s interpretation thereof as per Booklet 3 (National Patient’s Right Charter), the non-recognition and non-payment of dietetic services is a transgression of the protection of the human rights of members of the Workmen’s Compensation Fund.

Furthermore, the status quo constitutes discrimination in the workforce amongst workers as well as against dietetics as a profession.

2.2.4.
2.2.4.

South Africa Institute of Chartered Accountants (SAICA) SAICA made a clause-by-clause oral submission on the proposed amendments, as follows: Clause 1, section 1 • SAICA supported changes of including domestic workers in the Act.

However, SAICA raised the following concerns with implementation: o Statistics South Africa estimated that there were 864 000 domestic workers in the country in September 2020. o The registration process for domestic workers is currently manual.
o There is poor feedback from the CF once manual documents are submitted.

o There is difficulty in correcting errors once documents are submitted.

o Currently employers are engaging service providers to assist with claims due to difficulty in engaging with the CF o Domestic employers would not necessarily be able to appoint service providers to address- administrative difficulty.

o Received assessment, based on rates can be minimum of R492,66 but CF has a minimum assessment of R1 284 per annum.
o If a mistake is made, employer has to correct within 30 days otherwise CF will not review assessment.

• Recommendation o A transitional provision must be included to address issues such as: (i) how will changes be implemented and how to receive reference number (ii) when employer register must they now pay assessments for previous years (iii) turnaround time in receiving feedback when registering.
Clause 43, section 73 12 39 The following issues must be taken into consideration: • Cession assist medical service providers to be paid.

• 3rd party service providers have systems in place.

• Shorter turnaround times.

• Medical service providers don’t have time and know how on how to deal with the CF.

• Impact on IOD patients, service providers and 3rd party providers.
Unintended consequences of clause 43 • Valid claims that were ceded and/or assigned from medical services providers and submitted to the Fund for payment prior to commencement of the Act will be “void” (not voidable).

• The existing pre-funding book would in effect be wiped off the balance sheet of companies with the effect that financial institutions that advanced funds to these companies will cancel all facilities and will foreclose on their security.
• The proposed amendment seemingly has retrospective effect and the retrospectivity prejudices pre-funders that legally conducted its business before the proposed amendment.

Recommendation on clause 43, section 73(4) • Consider impact on vulnerable employees.

• Consider impact on medical service providers.

• Question whether the Regulatory Impact Assessment took this into account.

• Seem to unreasonably prohibit business practices with no apparent business rationale.
• Therefore, SAICA requested deletion of this proposal.

Clause 51, section 83 The Committee must consider the following: • There is no information on amount of penalties.

• System issues lead to employers submitting manually and charged with late submission penalty.

• There is no method for employers to object.

• Employers don’t receive feedback after submitting information to CF.
13 40 Recommendation on clause 51, section 83: • The Bill needs to set out a method for employers to object to incorrect assessment prior to penalties being levelled.

• Detail regarding the calculation of the penalty to be provided.

• A process to object to the assessment needs to be included.

2.2.5.

Nala Business Chamber Nala Business Chamber is a legal NPO Business Chamber under the South African Chamber of Commerce.
Nala reported negative impact they have of the illegal forums who injure people at worksite and contractors or clients do not report such incidents to the DEL and particularly COIDA.

They inquired as to what happens to the client who invited the visitor or worker who get injured in their property?

Nala was of the view that illegal forums require thorough analysis and incorporation into the legislation.
Nala felt that the penalties given to the employers are too low and they must be a fraction or percentage of the total revenue and not profit.

Furthermore, Nala felt penalties need not only look at bigger companies, but also smaller companies if they’ve transgressed in terms of the regulations in line with Occupational Health and Safety Act and COIDA.

2.3.
2.3.

Summary of oral submissions made on 22th April 2021 Below is the summary of oral submissions made on 22 April 2021 in the order in which they were presented.

2.3.1.

Occupational Therapy Association of SA (OTASA) OTASA made the oral submission as follows: • OTASA supported the inclusion and incentivisation of vocational rehabilitation in the Bill, in restoring an employee’s independence and social integration to the maximum extent practicable.
14 41 • OTASA was particularly pleased that the rehabilitation framework was being used, which is: a. clinical rehabilitation and the provision of assistive devices for the purpose of physical and psychological recovery of the employee and to reduce any disability resulting from an occupational injury or disease; b. vocational rehabilitation to assist an employee to maintain employment, obtain employment, regain or acquire vocational independence; and c. social rehabilitation to assist in restoring an employee’s independence and social integration to the maximum extent practicable.
• OTASA highlighted the complexity of these processes and the types of service delivery that require inclusion and funding and the significant role Occupational Therapists (OTs) can play in the achievement of this outcome.

• OTASA welcomed the inclusion of domestic workers among the range of employees that may receive benefits from the Compensation Fund.
As a result, OTASA assumed that there will be an increase in: o o o the number of users; the extent and nature of services to be delivered in order to fulfil the mandate of the Bill; and.

this in turn will require an increase in the number of OTs.

• OTASA reported the following problems encountered by OTs in providing services for workers injured on duty: o Registration on CompEasy system.

Of those surveyed, 50.9% reported successful registration in February 2021. o Navigating the CompEasy system.
Only 21.8% reported to be able to navigate the system.

Those who reported inability to navigate the system were 78.1%.

o Submission of claims.

Of those surveyed, only 21% reported that they were able to submit claims on CompEasy.

The remaining 78% reported that they were not able to submit claims on CompEasy system.

o Unpaid invoices averaged 80% in August 2020. o Of those surveyed, 48% and 62% reported retrenching staff and reducing working hours as a result of non-payments respectively.
15 42 • As accounts often remained unsettled due to employers not registering their employees on the CompEasy system, OTASA welcomed the penalties for employers to ensure better compliance.

• OTASA was of the view that CF should be held responsible and accountable for the utility of the CompEasy system, as the size of penalties can be considerable.

• The terminology used on the Bill focuses on “medical practitioners”.
This has a consequence for: o what is paid (medical expense); and o term interferes with professional independence (specifically on forms).

o The term “health care practitioners” would be more fitting.

• The term “medical aid” within the Bill is confusing, since it is used inconsistently with the term in the private health care industry.

• Clause 43, section 73 o According to OTASA, the proposed prohibition on involvement of intermediaries in claims and compensation recovery process is controversial.
o They expressed grave concern about the capacity of the CompEasy system and the CF’s ability to settle accounts within working days.

o OTASA reported that from their recent survey, most of their members use an intermediary.

The number of members working directly with the CF decreased from 29%, to 20% and currently stand at 18.8%.

Of those surveyed, 67.2% reported that the prohibition of intermediaries would affect their financial viability and 60% said they would probably no longer treat CF patients.
• OTASA outline the negative experiences of OTs working directly with the Compensation Fund.

These included ICT challenges and inability to resolve queries through the call centre, which they said put them on hold for extended period of time.
They outlined the implications of these experiences for patients as follows: o Drop in standard of care as patients are not seen as frequently to limit financial risk and pressure garments and splints that require expensive materials in their manufacture are not being prescribed as frequently.

o Medical professionals refuse to see COID patients resulting in patients’ inability to access health care.

o Poor prognosis and increased disability resulting in increased pay-outs from the Fund.

16 43 2.3.2.
16 43 2.3.2.

Compsol Compsol is a claims administration company, which has an establishment of 438 staff members most of them stationed in the Eastern Cape.

Its oral submission focused on the role played by third parties or pre-funders in the claims administration process.

Compsol presented as follows: • Compsol stated that their medical services providers are owed more than R556 million in switched but unpaid accounts.
In addition, they said more than R180 million worth of services were already rendered in good faith, but not yet submitted as claims could not be registered due to CompEasy system problems.

• They stated that it takes 347 days on average for CF to pay an invoice.

Gqeberha labour centre was identified as the one that take the longest time to pay an invoice at 474 days.

A Medical Aid pays an invoice within 25-40 days, while Compsol pay within 14 days on average.
• Compsol view the role of cessionaries as follows: o Gate keepers and aggregators.

o Ensure that medical service providers, employers and injured workers realise their rights in terms of the COID Act.

o Provide administrative support to employers, employees and medical services providers.

o Provide working capital to medical services providers.

o Eliminate 99.9% of potential fraud.


o Elimination of fraud by ensuring legal compliance before an invoice is submitted to the Fund via the state of the art software with built-in validations.

o Invoices are switched after the Fund has accepted liability for the incident.

• Medical service providers carry the full cost of a commercial factoring agreement.

No costs to employer, injured worker or the Fund.


The factoring process happens post patient treatment and does not prohibit any medico legal action against the medical service provider.

Factoring has the following benefits: o Much needed working capital is injected into medical practices ensuring their sustainability and willingness to treat injured workers.

17 44 o Allows young, newly qualified doctors to get their practices established, buy equipment and sustainably treat IOD patients.
o Injured workers are assisted by willing and able MSPs.

o Back-to-work protocols ensure minimum negative impact on the economy.

o Employers have minimum downtime and are assisted in their effort to comply with the complex COID environment.

• Compsol was of the view that clause 43(4) seeks to ban the collective ability of third party cessionaries to hold the CF accountable for just administrative action.

• Compsol highlighted Courts’ rulings against the Fund.
They reflected on 113 invoices that were invalidly rejected.

Of these invalid rejections, 85 were a result of the Fund’s software problems and 28 were a result the Fund’s staff problems.
• Compsol pointed out that the following stakeholders were not consulted when the SEIA was conducted: o “Third parties” – neither cessionaries nor administrators o Private health care sector o Registered credit providers, cooperative financial institutions, registered banks, factoring houses or other financial institutions • They also pointed out that clause 43 was not included in the presentation to the Committee on 4 November 2020.
• Compsol defined “cede” or “purpots to cede” as follows: o Cession is an act whereby the cedent (medical services provider) transfers rights (invoice) to the cessionary (commercial bank, registered financial services and credit provider of Compsol).

Simply the sale of a medical invoice for service already rendered.
• According to Compsol cession is not and does not: o prevent the CF from interacting with its clients; o cause or increase the risk of fraud; o determine into whose bank account monies for medical services administered are to be paid; o impact the compensation benefits received by the injured employee; o result in additional costs to the CF; and o violate any provisions of the Health Professions Act.

18 45 • Compsol stated that risks identified by the CF e.g.
fraud and corruption should be addressed through a system of well-established preventative, corrective and detective controls and a strong control environment with general and application controls e.g.

SAP, not legislative amendments.

• According to Compsol clause 43(4) is unconstitutional because of the following reasons: o It will prevent medical service providers from using their invoices as collateral for financing of working capital which infringes on their right to property.
o It is intended to limit the medical service provider’s right with what they may do with their medical accounts for services already rendered.

It purports to govern and control the economic rights of a medical service provider.

o It will prevent medical account cessionaries to access the courts resulting in the CF no longer being held judicially accountable, which is not in the public interest.

2.3.3.
2.3.3.

Socio Economic Rights Institute (SERI) SERI is a registered Non-Profit Organisation (NPO) that provides socio-economic rights assistance to individuals, organisations and social movements in South Africa.

SERI represented Ms Sylvia Mahlangu in her case against the Minister of Labour (Now Employment and Labour) which culminated in a ground-breaking judgement of the Constitutional Court of South Africa.
On 19 November 2020 the court handed down an order declaring constitutional invalidity of section 1(19) paragraph 5 of COIDA, which excluded domestic workers employed in private households from definition of employee.

The court also ruled that the order of constitutional invalidity takes immediate and retrospective effect from 27 April 1994.
According to SERI, although the current Bill includes the domestic workers under the definition of employee, it does not give full effect to the Mahlangu judgement, which ruled that the judgement has to have immediate and retrospective effect from 27 April 1994.

SERI stated that in December (2020) it submitted a retrospective claim for compensation for the death of Ms Mahlangu.

SERI noted that it is still impossible to process retrospective claims.
Their interest is to ensure that domestic workers are sufficiently protected and that the Mahlangu judgement is fully complied with.

19 46 SERI presentation was divided into three parts, namely: Specific comments, secondly challenges affecting the realisation of domestic worker rights; thirdly challenges of enforcing the law and fourthly recommendations.

Specific comments According to SERI, sections 38, 39, 41 and 44 present obstacles when it comes to retrospective claims.
• Section 38, Notice of accident by employee to employer This section requires, an employee to file a notice of an occupational injury verbally or in writing to the employer.

It also states that the notice of an accident can be given to the Commissioner.

Although it also states that failure to give notice to an employer does not bar a right to compensation, the employee must show that the employer had knowledge of the accident from any other source.
It is therefore clear that this section requires the employee to file the first report of an accident, failing which his or her claim may be rejected.

SERI submitted that section 38 requires some reconsideration or an amendment.

As a previously excluded group the domestic workers are unlikely to have filed this first report to employers.

As it stands this section will disadvantage the domestic workers, asserted SERI.
• Section 39, Notice of accident by employer to Commissioner Although there are proposed amendments to this section other provisions which prefer the employer as the first party to give notice of accident to the Commissioner and the time limits that are set out for giving such notices remain intact SERI submitted that the scheme of this section works to disadvantage domestic workers whose employers have no duty to give notice of the accident to the commissioner.
The DEL should consider making amendments to section 39 to accommodate workers submitting retrospective claims whose employers are either untraceable or unwilling to lodge a claim.

• Section 41, Particulars of claim The difficulty with this section is that it provides for particulars of claim to be provided by employees when requested to do so and it is clear that the kind of particulars envisioned are 20 47 medical reports and the like.
It should be acknowledged that domestic workers intending to bring in retrospective claims may not be in a position to provide these sort of particulars.
SERI therefore submitted that other forms or types of particulars to prove retrospective claims be considered and these could include affidavits or witness testimony and the DEL should consider other types of particulars as well • Section 44, Prescription States that the right in terms of the Act will lapse if the event is not brought into the attention of the Commissioner by the employer or mutual association concerned within three years from the date of the accident.
SERI submitted that a mechanism must be put in place to enable the Fund to process retrospective claims from domestic workers.

SERI was of the view that the proposed Bill should be withdrawn in its entirety because it does not address processing of retrospective claims or a new section should be introduced in the Act that would give effect to the Mahlangu judgement and the subject of retrospective claim.
Challenges affecting the realisation of domestic worker rights • Wide spread non-compliance from employers In the post-apartheid South Africa government sort to include domestic workers under labour legislation such as Basic Conditions of Employment Act, Labour Relations Act and Unemployment Insurance Fund.

We also have sectoral determination 7 which establishes the basic conditions of employment in the sector.

Despite these, domestic workers in SA still continue to work under unfair conditions.
Employer non-compliance in the domestic sector is wide spread.

It is therefore important to explore the nature of the sector, what characteristics facilitate employer non-compliance and challenges in enforcing the law if we are going to make any headways in this issue.
While some progress has been made with respect to enforcement in our country, it is clear that the enforcement mechanisms that are used in other sectors are made particularly difficult due to domestic workers’ workplace being the private home.

So on the one hand you have domestic workers who are entitled to protection under the law and should have access to the visit of labour inspectors at workplaces on the other hand you have household members who also have the right to privacy of their home.
So there is a conflict of rights which needs to be addressed.

21 48 • Challenges of enforcing the law A lack of knowledge by employers and a lack of administrative and enforcement capacity pose a challenge to enforcing the law.

SERI noted that the experience of domestic workers in accessing the UIF gives an example of what can be expected with the inclusion of domestic workers in COIDA because they are very similar social protection schemes.
Reports state that only about 20% of domestic workers are registered for UIF.

• Recommendations SERI made the following recommendations: o The Bill should be withdrawn in its entirety because the proposed amendments are inadequate in dealing with retrospective claims.

When the Bill was drafted the retrospective claims were not considered.

Alternatively, a new section on retrospective claims should be included.
o The Bill is not in alignment with the Constitutional Court judgement in Mahlangu and should be aligned.

o The DEL should promote health and safety in the domestic work environment in accordance with Occupational Health and Safety Act.

o The Department should create an incentive for employers of domestic workers to register and contribute to the Compensation Fund.

o The registration and contribution system for employers should be simplified.
o The Department should strengthen enforcement mechanisms in the domestic work sector by securing enough qualified labour inspectors.

o An internal directive within the Department should be sent out to all staff to educate them about how to process the retrospective claims.

o Retrospective claims received should be monitored and experiences of such claims shared.
o The Fund should outline deadlines for employers to register and the deadline for when new employer employee relationship is established and the Fund should communicate clear penalties for non-compliance.

o The Department should launch a public awareness campaign about the inclusion of domestic workers in COIDA.

22 49 2.3.4.

COSATU COSATU welcomed and expressed strong support for the Bill because of its progressive provisions.
COSATU encouraged Parliament to prioritise passage of the Bill since, according to the presenter, it is long overdue.
COSATU presented as follows: • COSATU welcomed the inclusion of all medical costs, constant attendance allowances and funeral costs because: o Most workers, especially industrial and at risk workers do not have medical aid; o Medical aids frequently exclude significant costs from coverage; and o This will assist many workers with unforeseen and often unaffordable costs at a moment of distress or the loss of a bread winner for a family.
• COSATU supports the expanded definition of dependents since these are necessary to reflect the family and cultural norms of South Africa.

• COSATU strongly welcomed the long overdue inclusion of domestic workers under the coverage of the CF because: o This will benefit the almost one million domestic workers who have been excluded to date; o The Bill should not have been delayed for so many years; and o The result has been in countless domestic workers denied Compensation Fund relief.
• COSATU welcomed the inclusion of post-traumatic stress disorder since: o This is critical for many workers exposed to violent or other horrific workplace incidents; o This will benefit security guards, mine workers, correctional service officers and many other workers exposed to violent and other traumatic incidents; and o It will provide relief to women workers who have been subject to violence and abuse.
• COSATU welcomed the inclusion of cover for diseases resulting from the workplace since: o This is critical for many workers exposed to unhealthy workplaces; o Examples include exposure to asbestos in the mining and construction sectors, hazardous materials in the chemicals industries and more recently COVID 19; and o This will provide security and relief to millions of workers and their families.
23 50 • COSATU supports the provision setting out Board membership and NEDLAC’s role in facilitating nominations from organised labour and business since: o This is an employer and employee scheme and needs to reflect that; o Support Board membership criteria; and o Welcome criteria for removal of Board members.
• COSATU welcomed the introduction of no fault rule when determining compensation since: o This is important to avoid unfair exclusion of workers; o Accidents will often include some degree of fault; o The point of CF is to assist workers with their medical costs, rehabilitation, reintegration, as well as their families; and o It should not be used to punish workers and their families during already trying conditions.
• COSATU supports the provision for fines of up to 10% of earnings to offending employers in certain instances because: o These are necessary to ensure that employers take compliance seriously and those who blatantly break the law are dealt with firmly; and o Requirements to meet compliance are fair, rational and not onerous.
• COSATU welcomed extension of the time to submit claims from 12 months to three years since: o This will assist workers battling to recover, those unaware of their rights or lacking the means to submit claims; and o Government, employers and unions will need to play their respective roles in ensuring that all employers and employees are aware of the provisions of the Act.
• COSATU welcomed the additional six-months provision for workers to submit objections when good cause can be shown since: o Often workers struggle to gather the required documentation; and o This provision will provide additional space to do so if needed.

• COSATU welcomed the cover for road accidents occurring during the course of work under the CF and agree with prevention of double dipping and the coverage of accidents not occurring in the course of work under the Road Accident Fund.
24 51 • COSATU accept the role of lawyers in what are often complicated submissions and given the backlog of applications because: o Lawyers’ excessive fees at expense of claimants has often robbed claimants of the little monies due to them and further strained CF’s limited tax payers’ funded resources; o Accept conditions placed upon lawyers in the Bill; and o Support court set fees’ limitations but needs to be enforced.
• COSATU supports the inclusion of provisions providing for shared and appropriate responsibilities between employers, contractors and sub-contractors because: o This is critical to ensure that workers’ rights are not undermined by contracting and sub-contracting and that employers, contractors and sub-contractors are held accountable for their responsibilities.
• COSATU welcomed the provisions providing for incentives for employers who are in compliance with the Act and embrace good labour practices because employers need to embrace their roles in promoting labour market stability and decent work in order to boost productivity and spur economic growth.

COSATU comment by clause/section • Clause 41, section 70A Clause 41 inserted a new section 70A after section 69, titled “Rehabilitation and Reintegration”.
COSATU supported the insertion and pointed out that it correctly seeks to meet South Africa’s legal and constitutional obligations to ensure the rights of workers to rehabilitation and to return to work when ready as outlined under the International Labour Organisation’s Conventions, United Nation’s Conventions, South Africa’s Constitution and Integrated National Disability Strategy.
However, COSATU was of the view that there are certain features of drafting in this section which would, if enacted by Parliament, undermine the clear purpose of the amendment to provide for the right to rehabilitation in accordance with the Constitution and South Africa’s international obligations.
According to COSATU, as presently drafted, section 70A: 25 52 o Gives the CF and its licensees a discretion to provide rehabilitation rather than imposing an obligation on them to do so; o Subsection (1)(c) restricts the concept of rehabilitation to an employee returning to his/her previous employment; and o Subsection 2(b) can be interpreted as restricting the purpose of rehabilitation to providing for the employee to return to work as an employee rather than enabling an employed person to be rehabilitated so as to perform work either as an employee, an independent contractor or self-employed person.
COSATU’s proposed amendments on Rehabilitation COSATU proposed the following amendments to the text of the proposed section 70A: “Compensation Fund to provide rehabilitation 70A.
(1) subject to the provisions of this Act, the Compensation Fund, employer individually liable or licensee as the case may be, [may] must provide facilities, services and benefits aimed at rehabilitating employees suffering from occupational injuries or diseases to return to [their] work or to reduce any disability resulting from their injuries or diseases.
• Clause 16, section 30 COSATU raised the following concerns regarding proposed amendment to section 30: o Workers’ compensation is a unique form of insurance in that employees are prevented from bringing civil claims of any form against their employers by section 35 of the Act.

o The prospect will now arise that a wide range of organisations, including insurance companies, will apply for licences to insure employers in particular sectors of the economy.
o The experience of many workers is that insurance companies reject claims wherever possible, often on technicalities.

Such an approach is incompatible with the administration of workers’ compensation which is a remedial scheme.

o Section 30(7) states that a licensee shall be accountable to the Minister but it does not say how the operation of a licence will be supervised to ensure workers receive compensation and claims are not inappropriately rejected.
COSATU’s proposed amendments on Licensing 26 53 COSATU proposed the following amendments to the proposed section 30(7): “(7) Any licensee issued with a licence in terms of this Act shall: (a) be accountable to the Minister[.
]; (b) be under the control of a boards consisting half of members representing organised labour and half of members representing business; (c) comply with any conditions determined by the Minister or as may be prescribed; and (d) conduct their business transparently and in a manner that gives full effect to the rights of employees and their dependants under this Act.” 2.3.5.
Solidarity Solidarity presented as follows: Introduction COIDA must be interpreted in such a manner that promotes the spirit, purport and objects of the social security right as enshrined in section 27(1)(c) of the Constitution.

Further, one of the principles to be kept in mind when considering compensatory laws is ease of understanding.
Clause by clause comments • Section 1(a) Solidarity opposed the removal of the word “accident” and substitution with “incident or occurrence” because no COIDA specific definition of “incident” or “occurrence” has been included in the COID Amendment Bill, which leaves one with the definition of “incident” in section1(1) of the Occupational Health and Safety Act (OHSA) read together with section 24 of OHSA, that requires an “incident” only to be reported in very specific circumstances that differs significantly from the requirements for reporting in COIDA.
Recommendation: Amendment to read as follows: “an accident arising out of or in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee and includes a recurrence, relapse or aggravation”.

27 54 Solidarity also proposed that a presumption be included in COIDA that if a person was injured/ died in the course of employment, it is presumed to arise out of employment and vice versa unless the contrary is proven.
• Clause 12, section 22 of the principal Act No amendment has been proposed to subsection (2) of section 22, but Solidarity proposed that payment in respect of temporary total disablement be made from day one.

Currently it is excluded from compensation unless the injury result in temporary disablement of four days and more.

It is also misinterpreted as it does not necessarily refer to the first four days.

However, that is how some employers interpret and apply it.
It is unacceptable that employees have to sacrifice up to and inclusive of three days of their limited number of allocated sick leave for an injury on duty.

Currently, if an employee does not have any sick leave available, he has to take unpaid leave.

• Clause 12(c), section 22 Solidarity supports the proposed amendment of section 22(5), but would prefer “the conveyance of an employee” to be described fully.
Solidarity was of the view that travelling from the place of work to home after a shift has ended, should be included as an “accident: in terms of the Act, because section 22(4) of the principal Act determines that actions taken “for the purpose of or in the interests of or in connection with the business of his employer” shall be considered to be on duty.
• Clause 15, section 26 Solidarity was of the view that this section places an employee under an obligation to divulge confidential health conditions to employers to which an employer is not entitled, for instance, is it correct to expert an employee to divulge an illness such as HIV/AIDS when an occupational injury is sustained or an occupational disease contracted.

HIV/AIDS may influence medical treatment as well as rehabilitation protocols.
• Clause 16, section 26 Solidarity was against the demutualisation of the mutual associations because it will not be in the interest of employees if compensation is paid by an ordinary insurance company that is primarily aimed at making a profit.

However, should demutualisation proceed, strict terms and conditions should be prescribed by law in the Act itself.
28 55 • Clause 30, section 49(b)(5) Solidarity strongly opposed this amendment as it may lead to the reassessment of permanent disablement that may be detrimental to pensioners.

It is unclear as to the necessity of this section in light of the right to review claims that is already provided for in terms of section 90 of the principal Act.

2.4.

Summary of oral submissions made on 28 April 2021 Below is the summary of oral submissions made on 28 April 2021 in the order in which they were presented.

2.4.1.
2.4.1.

Relay Emergency Medical Services (REMS) The presentation by Relay Emergency Medical Services (REMS) was divided into two parts, namely informing the Committee about the services they render and the conditions under which they work as well as comment on the COID amendment Bill.

Services rendered by REMS REMS informed the Committee, through pictures and video clips of the nature of their work and the conditions under which they render emergency medical services.
Their emphasis was on being always prepared since emergencies happen any time.

They also identified the scarcity of resources as a major challenge in their day to day work.

They showed a picture where they had to attend to farm workers who were involved in motor vehicle accident that overturned.
They emphasised the cooperation between them and the Emergency Medical Services of the Eastern Cape Provincial Department of Health as vital for the success of that operation, even though some workers sustained serious injuries.

They also showed the evacuation of the worker who was injured while working with horses in the horse stable.

The emphasis was the availability or non-availability of suitable vehicles for rural roads.
Another picture showed the transportation of a patient that tested positive to COVID-19, which they have to transport over 300km distance to get to the provincial hospital.

The condition of the patient deteriorated along the way and they were running short of oxygen, which the patient needed on a continuous basis.

29 56 Members of the Committee were also shown a picture where the worker was rescued from a collapsed trench, where specialised skills were needed.
A video was also shown of REMS paramedics demonstrating to the construction workers on working on heights.

REMS pleaded to the members of the Committee for resources such as human resources and vehicles to be used as ambulances as they don’t have enough of them.

Comments on the COID Amendment Bill REMS paramedics were concerned about the reluctance of some doctors especially in the private hospitals, to treat injury on duty patients.
However, they pointed out that this does not happen in public hospitals.

The public hospitals are over-crowded and under-staffed and taking injury on duty patients to them add to the already over-burdened system.

REMS pleaded with the members of the Committee to remove clause 43(4), which seeks to amend section 73 of the principal Act, from the Bill in the interest of injured workers.

2.4.2.
2.4.2.

Hospital Association of South Africa (HASA) Hospital Association of South Africa (HASA) is an association that was established to represent the private hospital sector in appropriate forums and to serve the interests of its members which are drawn from this sector.
HASA is composed of the following members in the private hospital sector: • Life Healthcare • Mediclinic • The National Hospital Network • Netcare • Other independent hospitals and hospital groups, including the Wisani Medical Centre in Ga-Rankuwa and Joint Medical Holdings HASA members comprise approximately 80 percent of acute hospital beds in South Africa distributed across all nine provinces, giving them a truly national footprint.
HASA members also contribute significantly to the South African economy.

In the 2016/17 financial year, private hospitals contributed R55.5 billion to the economy, equivalent to 1.3 percent of GDP 30 57 and supported 248 504 jobs throughout the economy, equivalent to 1.57 percent of national employment.
HASA’s presentation focused on the following aspects of the COID amendment Bill: prohibition on the cessation of claims by healthcare practitioners; inclusion of domestic workers into the ambit of COIDA; inclusion of compensation for rehabilitation and definition of “Medical Associations”.

• Clause 43(4), which seeks to amend section 73 of the principal Act.
The effect of clause 43 of the COID amendment Bill is to prohibit third parties (namely claims administrators and service providers) from taking cessation of medical service providers’ claims.

HASA was opposed to this clause on the following basis: • CF has a long history of inefficient administration in so far as processing and paying claims to, amongst others, medical service providers.
• Historical administration inefficiencies within the CF are what gave rise to the third party intermediaries whose services ensure that medical service providers: o Do not have to have the specialised knowledge required to ensure reimbursement from the CF; o Do not have to wait inordinate lengths of time for the CF to reimburse them for services rendered; and o Can focus on the clinical management of IOD patients.
• Medical service providers make use of claims administrators and service providers, not only in respect of their CF work, but their work with medical aid patients too.

• Claims administrators and service providers play a significant role in ensuring debt collection.
According to HASA, the consequences of these amendments include: o Threatens the provision of medical services to COIDA patients at private sector hospitals and therefore their access to healthcare services as guaranteed in the Constitution and will adversely impact revenue streams of private sector hospitals.

o In the absence of claims administrators and service providers, medical service providers will increasingly refuse to treat COIDA patients.
o This work will be pushed to the already overburdened public sector.

31 58 o This will detrimentally impact the patient’s health, recovery and future wellbeing, which will negate what is essentially the primary purpose of COIDA.

o The removal of claims administrators and service providers from the claims process will constitute a retrospective measure on the rights of COIDA patients to access health care services as guaranteed in section 27(1) of the Constitution.
HASA was of the view that if clause 43(4) is to be implemented, the CF would need to ensure that additional (ongoing) support structures are put in place to ensure that medical services providers are adequately trained and skilled to deal with the claims process.

HASA commented on the Socio-Economic Impact Assessment as follows: o The SEIA for COIDA version May 2015 issued by the Department of Planning, Monitoring and Evaluation does not set out the full impact of this assessment.
o There appears to have been no consultation or consideration of the private healthcare sector when conducting the SEIAS activities.

This is a significant oversight as medical service providers will be required to shoulder the burden associated with processing CF claims, should claims administrators and service providers be removed from the claims process.
HASA was of the view that the CF and the DEL had not provided cogent substantiation of the rationale for introducing the amendment contemplated in clause 43(4) of the COIDA Bill.

Furthermore, HASA was of the view that amendments contained in clause 43 of the COID amendment Bill are unconstitutional as they are irrational and therefore conflict with the principles of legality.

Therefore, HASA felt that DEL should focus on fixing what doesn’t work instead of eliminating what works.
HASA commented on inclusion of domestic workers as follows: HASA welcomed this proposed amendment.

However, they raised the following concerns: • There are no transitional provisions contained in the COID amendment Bill that would lend support to ensuring that domestic workers are from that date of their inclusion in the CIODA, able to access adequate healthcare services for occupational injuries and diseases under COIDA.

This could threaten the very rationality of this amendment.
32 59 • In order to ensure that this amendment is capable of realising its purpose, the CF will need to ensure that before this amendment takes effect, both employers and domestic workers are equipped and knowledgeable on how to comply with the requirements under COIDA.

• A positive obligation needs to be placed on the Commissioner to put in place measures to reduce existing backlogs in claims.
• HASA was of the view that it would be irrational and therefore contrary to the principles of legality to allow the amendment that brings workers within the scope of COIDA to take effect in the absence of educational campaigns and programmes; registration drives; guidelines on registration process and resource call centre.
HASA commented on the inclusion of compensation for rehabilitation into the ambit of COIDA as follows: • It would appear that there is going to be some level of claims processing in relation to rehabilitation.
It would be irrational to introduce a new category in respect of which claims can be made under COIDA (rehabilitation) into the ambit of COIDA, which would in effect further exacerbate backlogs and delay payment periods for claims, without simultaneously imposing a positive obligation to the Commissioner to put in place effective measures to reduce existing backlogs.
HASA commented on the definition of “Medical Associations” as follows: • The term “Medical Associations” has not been defined in the COID amendment bill, and as such, its meaning remains unclear.

Importantly it remains unclear if these “Medical Associations” will include hospital groups.
This is of particular importance to HASA and its members, who respectfully submitted that hospital groups should have a right to be consulted directly with respect to medical aid tariffs, particularly with respect to private sector patients.

• Accordingly, HASA submitted that it be clarified, by way of definition, if the term “Medical Associations” extends to and include hospital groups (in addition to doctor groups and allied groups) within its ambit.
Alternatively, HASA requested that the provisions of section 76 and 79 of the COIDA be extended to private hospital groups, and in particular that private hospital groups be conferred rights to be consulted directly for purposes of determining tariff fees for medical aid.

33 60 2.4.3.

Richard Spoor Incorporated Richard Spoor Incorporated (RSI) is a public interest law firm that focuses on industrial human rights law, e.g.

occupational health and safety and related compensation aspects.
RSI is well- known for its work in obtaining compensation on behalf of sick gold miners with silicosis (pneumoconiosis) in the largest class action in the history of South Africa.

The firm specialises in COIDA, ODMWA, MHSA, OHSA and related common law aspects.

The firm frequently represents clients on a pro bono basis.

The focus of oral submission of the firm was on four points, namely: 1.

Clause 60, proposing amendment to section 97(k) of the principal Act.
This clause will enable the Minister to make regulations for the determination on calculations of permanent disability.

2.

Clause 16, proposing amendment to section 30 of the principal Act.

This will commit private insurers to provide workmen’s compensation insurance thereby extend the field from two associations who are currently licensed namely Rand Mutual Association (RMA) and Federated Employers Mutual (FRM).

3.
3.

Clause 58, proposed amendment to section 91(f) of the principal Act This clause deals with legal costs in objections and appeals.

4.

Clause 1, amending section 1 of the principal Act This clause deals with the revised definition of dependants, which exclude children over the age of 25.

This will exclude disabled children over the age of 25 who are unable to work and are wholly dependent and will remain dependant on their parents for life.
RSI submitted that it will be unfair and unreasonable to exclude this category of dependants.

RSI submission on a broader context COIDA faces a number of challenges, including: • Inordinate delay in payment of claims.

34 61 • Wide spread under compensation where workers receive less than what they are entitled to under the Act.

• Claims being refused, more so occupational diseases claims.

• Unfair compensation scheme specifically as it relates to manual workers.
• Exclusion of workers and trade unions from the claims process.

It is the employer who lodges the claim and submit evidence in support of the claim.

In many instances workers have no insight into what is being submitted.

A way has to be found for workers to participate fully in the claims process.

• A compensation scheme is supposed to incentivise employers to improve health and safety in the workplace.

The premiums employers contribute towards the Fund should be linked to risks in the workplace.
Employers with unsafe workplaces and those with bad health and safety records should be contributing more towards the Fund.

To reduce the premiums, they should improve the health and safety record in the workplace.

Currently good employers are subsidising bad employers.

There is no sufficient correlation between the premiums and the risks that is being paid for.
Issues raised by RSI • Regulated assessment of permanent disability The Minister may make regulations regarding the assessment and the way permanent disability is determined.

Permanent disability is already regulated broader by the Act.

Schedule 2 of the Act which stipulates the degree of permanent disability associated with each type of injury (Meat Chart).

It compensates workers for impairment, not disability.

It contains provisions like the loss of two limbs equals 100% disability.
The loss of a hand at the wrist equals 50% disability.

Loss of one eye equals 30% disability.

The problem with the “meat chart” is that: • It does not correlate between actual disability and the injury itself.

• The compensation framework discriminates unfairly against unskilled workers.

• Circular 171, which deals with Noise Induced Hearing Loss (NIHL) provides that a base line assessment of hearing be conducted when a worker starts employment.
This test is not accurate and it does not take into account the hearing loss the worker might 35 62 have incurred before starting employment.

This base line test was introduced in 2002 and does not compensate for hearing loss incurred before that date.

RSI submitted as follows: • There must be guidelines when it comes to determination of disability and compensation.

Impairment must not be equated to disability.

Workers can be equally impaired but not equally disabled.
The current system does not take disability into account but focuses mainly on impairment, which is discriminating against unskilled work.

RSI does not believe that people should be partially compensated under the scheme.

2.4.4.

Workers Compensation Assistance (WCA) Workers Compensation Assistance was established in 2002 and employs 30 staff members.

It assists 1000 employers and their workforce of 500 000 with COIDA administration and compliance.
WCA categorised its general comments on proposed amendments into two, namely positive and negative comments: Positive • Enfolds domestic workers in private households • Modernises the principal Act • Restores the role of the Compensation Commissioner • Emphasise rehabilitation/ reintegration • Simplifies and improves the no-fault principle • Brings the Act in line with the prevailing law Negative • Misses the opportunity to clarify “employer” vs “exempted employer” vs “employer individually liable” (cf s44 Prescription) • Introduces some items of deep concern (dealt with individually below) mainly in areas of: o penalties, 36 63 o institutional capacity and o regulation.
• Typographical/ grammatical errors WCA ranked its items of concern in order of seriousness as follows: • Clause19 (which amends section 39 of the principal Act) o “(6) an employer who fails to comply with subsection 1 shall be liable to a penalty of 10% of the declared annual earnings • Clause 51(a) (amends section 83) o “(5) if the earnings actually paid by an employer in respect of a particular period differ from the current estimated earnings shown • Clause 20(c) (amends s40) o Issue: this and all penalties should be stated as a maximum • Clause 16(b) (amends s30) o [Mutual associations] License to carry out Business of Compensation Fund • Clause 43 (amends s73) o (4) cession or relinquishment of medical claim void • Clause 41(b) (adds s 70A) o 70A the Compensation Fund may provide facilities, services and benefits aimed at rehabilitating employees suffering from occupational injuries • Clause 52(b) (amends s85) o (3) if the employer is participating in the rehabilitation of employees as prescribed, the Commissioner may give such employer a rebate • Clause 1(k) (amends s1) o “employer individually liable” means an employer who in terms of section 84(1)(a) and (b) is exempt from paying assessments to the Compensation Fund WCA expatiated on the items of concern listed above as follows: • Clause 19 o 10% of declared earnings is typically seven times the annual assessment that an employer pays and cannot be sustained.
o The word “declared” should be replaced with the word “employee’s” because the employer “shall” be liable for the penalty it will result in destructive harm to most employers in RSA.

37 64 o CompEasy system prevents or delays reporting until/ unless all aspects of the accident/disease are known.

o Institutional impediments practically guarantee that employers will fail to report accidents.

o The CF processes should recognise the capacity of employers to institute claims on their own behalf.
• Clause 51(a) o The section must apply to all earnings incorrectly shown, not only to earnings “currently estimated”.

o No limitation should be imposed to the Commissioner’s right to correct an assessment to bring it in line with the actual earnings.

• Clause 20(c) o All penalties should be stated as a maximum.
The proposed wording is: “An employer who fails to comply with the provisions of this section shall be liable for a penalty not exceeding the full value of the compensation payable plus interest.” • Clause 16(b) o A regulatory framework is required to outline bases and criteria for awarding licenses (including existing licenses); arbitration of disputes against awards and similar issues; sight to be kept on the objectives of the amendment; and risk of “capture”.
• Clause 43(4) o WCA objects to this clause on the basis of its unlawfulness.
o Impracticality for employers, employees and the CF: Currently employees do not easily obtain medical services of their choice due to admin burden on providers who treat COIDA patients; If providers cannot choose how to recover their COIDA fees, employers and their injured employees may have even greater difficulty obtaining medical services; and ultimately, employees may be treated in public facilities or their medical aids will pay.
The CF may find it near impossible to obtain medical reports and claims will languish unresolved.

o Clause 43(b): Rehabilitation benefits are inadequate/ poorly supported e.g.

CF does not pay for the services of biokineticists and dieticians despite their interventions being crucial in rehabilitation and physiotherapists often struggle 38 65 to obtain payment for services.

The CF must urgently review the regulatory framework for rehabilitation.
• Clause 52(b) o To avoid uncertainty and abuse, strict guidelines are required for all aspects of section 85.

• Clause 1(k) o An exemption to pay the CF is not the same as “individual liability”.

It is therefore incorrect to group mutual associations and provincial departments together under the banner of employers “individually liable”.
o An anomaly was created by the Ministerial notice published 3 October 2014 which mandated the move of all class 3 (steel manufacturing) business to the Rand Mutual: although these employers have a theoretical right under s84(3) to move their registration to the CF, the notice prevents them from doing so; and by an interpretation of s84(3) such employers after they have moved back to the CF may never again be insured by a mutual association/ license.

2.4.5.
2.4.5.

Injured Workers Action Group (IWAG) The presentation of Injured Workers Action Group (IWAG) focused on clause 43(4), the socio- economic impact assessment and constitutionality of the COID Amendment Bill.

IWAG presented on clause 43(4) as follows: • Clause 43(4) of the COID amendment Bill prohibits medical services providers (MSPs) from ceding their claims for payment by the CF.
• This will result in third party administrators who assist the medical fraternity with administration and funding no longer being able to provide this service in the absence of financial and legal security.

• The result is that thousands of MSPs will lose their constitutional rights, be forced to do their own administration and to claim directly and individually against the CF.
Without the support and benefits of third-party administrators and funding, MSPs may choose not to treat injury on duty (IOD) workers/ patients.

39 66 • The Minister, Director General, CF Commissioner and Chief Director (Labour Policy and Industrial Relations) have indicated that the objective of clause 43(4) is to remove the need to deal with third parties.

• However, they have never provided evidence-based, empirical, rational, justifiable reasons or benefits of doing so.
• The SEIA conducted on the Bill did not provide cogent reason for clause 43(4).

• The elimination of fraud and corruption between service providers, such as third party administrators and the CF is mentioned, but there is no evidence of, nor any prosecution of any pre-funding third party administrator.

• To the contrary, pre-funding third parties remove the opportunity for fraud, clean up claims and assist the CF with its efficiencies.
• Pre-funding third party administrators do not charge workers, or the CF.

They assist MSPs, workers, employers and the CF.

IWAG presented on SEIA as follows: • Cabinet requires a SEIA to be conducted for any piece of legislation.

• The COID amendment Bill is not fit for purpose.

• Written in 2015, it is six years out of date, was conducted under a different Minister and during the Zuma Presidency.

It was written under the old Umehluko system which has since been replaced.
It was conducted and written in just two months.

It failed to interview or take into account the impact of the Bill on a single MSP.

It failed to interview domestic workers.

It failed to interview a single third party administrator, or the bank.

It failed to provide any justification for clause 43(4).
• • • • • • IWAG presented on constitutionality of the bill as follows: • Clause 43(4) violates at least three sections of the South African constitution, namely section 25 (the right to property), section 22 (the freedom of trade, occupation and profession) and section 34 (the right of access to the courts).

• MSPs exercise their rights to use the services of third party administrators and funders to assist their practices.
This saves them and provides much needed cash flow to run their practices and provide medical treatment to injured workers.

This right and choice 40 67 will be removed by clause 43(4) without consulting with them and for absolutely no benefit.

The risks are high that MSPs will go out of business or cease treating injured workers and dealing with CF.

• Hundreds of thousands of compliant businesses and employers contribute in excess of R11 billion per annum to the CF.
This is done to ensure that their workers enjoy the rights and benefits they are entitled to under COIDA.

• If MSPs stop treating injured workers due to clause 43(4), employers will be contributing to a Fund and benefit that workers can no longer make use of.

• Workers will be forced to turn to public health facilities, be delayed in treatment and only return to work (if at all) weeks or months later.

This will be a human cost and an immense cost to our fragile economy.

3.
3.

General Observations The Compensation for Occupational Injuries and Diseases Amendment Bill was received favourably by the majority of those who made oral presentations during the public hearings.

The inclusion of domestic workers in the definition of “employee” was welcomed by all parties that made oral submissions.
However, the following clause was rejected by most presenters: • Clause 43(4), which proposed the amendment of section 73 by including subsection 4 that reads as follows: “Any provision of any agreement existing at the commencement of this Act or concluded thereafter in terms of which a service provider cedes or purports to cede or relinquishes or purports to relinquish any right to medical claim in terms of this Act, shall be void.” Most presenters based their opposition to this clause on the negative impact they foresee to the medical services providers, the claims administrators, injury on duty patients and the public health care system.
They also expressed the view that some relevant stakeholders were not consulted when the Socio-Economic Impact Assessment of the Bill was conducted.

They also expressed doubt on the capacity of the CF to process claims timeously.

41 68 Having considered the oral presentations, the Committee agreed that the inputs would definitely assist the Committee when deliberating on the proposed amendments to the Compensation for Occupational Injuries and Diseases Act.

42 69